LEAVE/ABSENCES FOR DISABLED INDIVIDUALS

Following the new legislative updates regarding leave under Article 33 of Law 104/1992 and extraordinary leave under Article 42, paragraph 5, Legislative Decree 151/2001 introduced by Legislative Decree 105/2022, in force from August 13, 2022, with Circular No. 39/2023, INPS has provided administrative instructions for private sector employees on the aforementioned provisions. In particular, it should be noted that Decree 105/2022:

• has amended Article 33 of Law 104/1992, eliminating the principle of “single reference for assistance” with reference to the use of monthly leave under the same article regulated in paragraph 3;
• has amended paragraph 5, Article 34, Legislative Decree 151/2001, regarding ordinary parental leave and extension of parental leave under Article 33 of the same legislative decree;
• has amended paragraph 5, Article 42, Legislative Decree 151/2001, introducing the “de facto cohabitant” among the subjects identified as a priority for the granting of extraordinary leave and provided that, if cohabitation with the disabled person to whom assistance is provided is required as a criterion for the recognition of the right, it can be established after the application for extraordinary leave has been submitted.INPS will review the measures already adopted and the requests already received but not yet defined concerning relationships that have not been completed (legal situations for which a final judgment or prescription of the right has not intervened) based on the clarifications provided.New event codes and settlement codes have been introduced for the correct management of monthly leave and extraordinary leave in the Uniemens flows, which replace the existing ones and whose application is mandatory starting from the month of May 2023.As for the events already reported with the event codes and settlement codes already in use and falling within the periods of competence from August 13, 2022, to April 30, 2023, the methods of data transmission between employers and INPS will be defined with a subsequent communication.

Monthly leave entitlements

From August 13, 2022, while maintaining the overall limit of 3 days of monthly leave entitlement for caring for the same severely disabled individual, the right may be recognized, upon request, for multiple eligible individuals who may take turns in using the entitlement. Previously, more than one employee – except for parents – could not be authorized to use the leave entitlement for caring for the same severely disabled person.

The disabled person’s statement indicating the intention to be assisted by the applicant must be attached to the request of each applicant, and the authorization decision (sent by INPS to the applicant, the severely disabled person, and the applicant’s employer) will specify that the request has been granted within the maximum limit of monthly days that can be used alternately by all those entitled to provide assistance to the disabled person.

However, the individual right of the worker in a severe disability situation to use the 3 monthly days or the corresponding hourly rest periods for themselves (Article 33, paragraph 6) remains unaffected. Therefore, it is possible for the disabled worker to use the entitlement at the same time as the individuals who provide assistance (Article 33, paragraph 3) within the same month.

Regarding the cumulation between monthly leave entitlement days (Article 33, paragraph 3, Law 104/1992), parental leave extension (Article 33, Legislative Decree 151/2001), and alternative rest hours to parental leave extension (Article 42, paragraph 1, Legislative Decree 151/2001), INPS specifies the following:

• The use of the aforementioned benefits for the same severely disabled person must not be cumulative within the month;
• If a request for parental leave extension or alternative daily rest hours to parental leave extension is submitted and approved, all authorizations for leave entitlement days under Article 33, Law 104/1992, to assist the same severely disabled person, valid during the same months, will be suspended and reactivated automatically for subsequent periods already covered by previous approval decisions;
• For the months in which one or both parents are authorized to use parental leave extension or alternative daily rest hours to parental leave extension, no new requests for monthly leave entitlement days for the same severely disabled person can be accepted.

The online application for submitting the request has been updated according to the new provisions, and to request the transmission of the “Disabled person’s statement” also for requests for monthly leave entitlement days for severely disabled minors, if not already submitted, provided that the service requester is not the mother or father.

Parental leave extension

For the periods of parental leave extension taken from August 13, 2022, it is provided that they do not entail a reduction of holidays, rest periods, and Christmas or thirteenth- month gratuity, except for the additional emoluments related to actual presence in service, unless expressly provided for by collective bargaining.

Any exceptions by collective bargaining, however, may only relate to additional emoluments related to actual presence in service: collective bargaining may therefore provide for a more favorable treatment regarding these emoluments for the workers concerned.

Extraordinary Leave

Regarding the introduction of cohabiting partners among the individuals identified as a priority for the granting of leave, INPS (Italian Social Security Administration) has specified that:

• “cohabiting partners” are intended to mean two adult persons who are stably united by emotional and material bonds of mutual assistance and are not bound by relations of kinship, affinity or adoption, marriage or civil union, and are ascertained on the basis of the required personal information declaration;
• for the purpose of granting the right, it is sufficient for the applicant to declare in the application to be a spouse/partner of a civil union/cohabiting partner in accordance with the current legislation.

Therefore, as of August 13, 2022, it is possible to use the leave in question according to the following priority order:

1. the “cohabiting spouse” / “cohabiting civil union partner” / “cohabiting partner” of the disabled person in a critical situation;
2. the father or mother, also adoptive or custodial, of the disabled person in a critical situation, in the absence, death, or presence of disabling pathologies of the “cohabiting spouse” / “cohabiting civil union partner” / “cohabiting partner”;
3. one of the “cohabiting children” of the disabled person in a critical situation, in case the individuals referred to in the previous points are missing, deceased, or affected by disabling pathologies;
4. one of the “cohabiting siblings” of the disabled person in a critical situation, in case the individuals referred to in the previous points are missing, deceased, or affected by disabling pathologies;
5. a “cohabiting relative or affinity within the third degree” of the disabled person in a critical situation, in case the individuals referred to in the previous points are missing, deceased, or affected by disabling pathologies.

For the purpose of assessing the entitlement to the right, the applicant is required to declare in the application, under their responsibility, that they will establish cohabitation with the disabled person in a critical situation before the beginning of the requested leave period and maintain it throughout the entire duration of the leave.

The application for the online submission has been updated to allow cohabiting partners and legally prescribed family members to submit the application, even if cohabitation with the severely disabled person has been established after the request for leave, and to request the transmission of the “Disabled Person Declaration” to assist minor disabled persons, if not already sent, provided that the applicant for the benefit is not the mother and father.

FATHER WORKERS TERMINATION TICKET

In its message no. 1356/2023, INPS provided clarifications on the contribution aspects related to the entitlement of leave for father workers, as well as operational instructions for the compilation of UniEmens flows, with particular regard to resignations during the period of paternity leave and the obligation to pay the so-called termination ticket.

Please note that leave for father workers comes in two types:

1. Mandatory (10 working days or 20 in case of multiple births, not divisible into hours, to be used also discontinuously from 2 months before the expected date of birth and within 5 months after, even in case of stillbirth; the leave can also be used during the mother’s maternity leave and is recognized to the father who uses alternative paternity leave);
2. Alternative (leave from work for the entire duration of the mother’s maternity leave or for the remaining part that would have been due to the worker in case of the mother’s death, serious illness, or abandonment, as well as in case of exclusive custody of the child to the father).

During the mandatory or alternative paternity leave period and up to the child’s first year of age, the termination of employment initiated by the father worker is null. Moreover, during the period when the termination prohibition is in force, in case of voluntary resignation submitted by the worker who uses mandatory paternity leave or alternative paternity leave, the worker is entitled to the indemnities provided by law and contractual provisions for the case of termination. The worker who resigns during the aforementioned period is not required to give notice.

The father worker who has used mandatory and/or alternative paternity leave is entitled to the NASpI unemployment benefit if all other legally prescribed requirements are met.

Contribution aspects

The resignation of the father worker in case of entitlement to mandatory or alternative paternity leave, if occurring during the leave period and up to the child’s first year of age, results in the existence of the contribution obligation called termination ticket.

In particular, the contribution obligation in question, already provided for in the case of alternative paternity leave, also applies in the case of mandatory paternity leave.

In this second case (mandatory leave):

• the employer is obliged to fulfill the contribution obligation for interruptions of the indefinite employment relationship occurring within the time frame starting from 2 months before the expected date of birth and up to the child’s first year of age;
• the contribution obligation exists from August 13, 2022, and for resignation events occurring from the same date.

As regards the tax point and the amount of the contribution, the clarifications of circulars no. 40/2020 and no. 137/2021 apply, however, for resignations occurring before April 12, 2023, the employer must pay the contribution by July 16, 2023, without penalties or interest.

The contribution is not due, until December 31, 2023, in case of interruption of the indefinite employment relationship of a worker hired with the qualification of journalist.

The contribution obligation also applies in the case of interruptions of the indefinite employment relationship of agricultural worker or apprentice employed by agricultural cooperatives and their consortia.

The firm remains available for any further clarification.
Best Regards.